Sartorial Exclusion

April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Sunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

To Mr. Horsley, who has in the past entered the country without incident, the recent fracas arose less from his past indulgences than a current one. In short, his very tall top hat.

“It’s a stovepipe,” he said, referring to the subspecies made famous seven score and seven years ago by Abraham Lincoln. “They asked my girlfriend, ‘Why is he wearing that hat?’ And she told them, ‘Because it wouldn’t fit in his suitcase.’ ”

Back home in England, he noted dryly that he had refrained from wearing his usual makeup and nail polish on the flight so as not to attract undue scrutiny — merely a three-piece suit by the Savile Row tailor Richard Anderson, a pink-and-gold-braid tie, a black velvet topcoat and fur-trimmed black leather gloves.

The NYT article wonders who needs to be protected from whom: U.S. citizens from Mr. Horsley, or Mr. Horsley from U.S. citizens who might fail to appreciate his eccentricities?

Though recent discussions of immigration policy have focused on what to do with undocumented persons already on U.S. soil, exclusion at the border is also an issue of interest. Moral turpitude might be the basis on which the U.S. has denied entry to shady characters such as Amy Winehouse and Sebastian Horsley. But intellectual turpitude is also grounds for exclusion. During the Cold War, the United States practiced “ideological exclusion,” denying visas to dangerous persons such as Gabriel Garcia Marquez, Doris Lessing, and that Communist conspirator in pyjamas, Pablo Neruda (scroll down here for my preferred translation of "Lone Gentleman"). At present, the U.S. is denying entrance to Dora Maria Tellez, a Nicaraguan historian and former revolutionary who had been invited to teach at Harvard; Tariq Ramadan, a Muslim scholar and Fellow at Oxford; Adam Habib, a South African professor of political science; and other scholars. The ACLU, which represents PEN American Center and others in legal challenges to some of these exclusions, has an interactive feature that allows the viewer to browse “passports” of famous persons excluded for their political associations or statements. One of my favorites was Canadian Prime Minister Pierre Trudeau, whose arrest in Moscow for throwing a snowball at a Stalin statue didn’t win him enough credit to prevent the U.S from excluding him for Communist sympathies. Or was the problem aesthetic turpitude? After all, Trudeau was a known fashionista, criticized in his own country for wearing a yellow ascot to the House of Commons.

Posted by Alice Ristroph at 05:28 PM | Comments (2) | TrackBack

More than a Metaphor: Frischmann on the Economics of Speech and the First Amendment

Brett Frischmann has just posted an essay, A Note on the Economics of the First Amendment: Sustaining a Spillover Rich Networked Environment, to SSRN. The essay is part of the University of Chicago Legal Forum in 2008. In the essay, Brett "explores how the First Amendment may operate to sustain a spillover rich networked environment." In other words, the First Amendment seems to "promote[] externalities and sustain[] an externality-rich environment." The ideas in the paper touch on whether all externalities must be internalized. It argues that in some cases, such as speech, externalities are desired and that the First Amendment may thus be understood as fostering externalities. So for those interested in a concise presentation of externalities and how to understand them, the piece is more than helpful. In addition, the essay takes that understanding and offers a stimulating idea regarding how speech externalities seem to be the types of externalities that should be internalized, yet are not. The description of why they are not is well worth the time as it points to understanding "the nature of tradeoffs made in the law—in the First Amendment area, but also, in copyright, communications, and other areas that look like broad exceptions to the First Amendment."

Image: This is sign at one of my favorite places, Muir Woods which is just north of San Francisco. It was taken by Brandt Luke Zorn and may be found at Wikicommons. Creative Commons Attribution ShareAlike 2.0 license

Posted by Deven Desai at 12:20 PM | Comments (0) | TrackBack

On Standing Up to the RIAA and the First Amendment

The Recording Industry Association of America (RIAA) has been on a litigation rampage, attempting to identify people it believes are sharing music online, slapping them with a frightening lawsuit, and extracting steep settlements out of them. Universities are frequently being subpoenaed by the RIAA to provide information about students. Whether this strategy of acting like a lunch money bully is working remains to be seen, but finally a university is fighting back. According to Adam Liptak's essay in the New York Times:

The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.

The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.

Represented by the state’s attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices. . . .

“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”

“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”

Mr. Myers questioned the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain “private, confidential information unrelated to copyright infringement.” He added that it may have violated an Oregon criminal law requiring investigators to be licensed.

I am pleased that the university is fighting back. Liptak seems skeptical about whether the university will be successful in its challenge to the subpoena, but at least it is defending its students rights rather than quickly giving in. Universities should not be so quick to accede to RIAA subpoenas.

One issue involves students' First Amendment rights. Although the Supreme Court has held that copyright infringement isn't protected under the First Amendment, Harper & Row, Publs. Inc. v. Nation Enters., 471 U.S. 539 (1985), protected speech may be involved in some cases. According to the Court, copyright has "built-in First Amendment accommodations" via the fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186 (2003). Copyright protection is thus compatible with the First Amendment because of the existence of fair use. What this means is that it is possible that in any given case, some of the uses of the music may be fair use, and that is protected by the First Amendment. Moreover, a person may have made statements online along with engaging in piracy. So, for example, an anonymous person might maintain a website where he posts music files for trading along with the statement that "the RIAA is a big bad bully." That statement is protected speech, and identifying an anonymous speaker triggers heightened First Amendment standards for the subpoena.

The RIAA might argue something like this: "But the people whose identities we're seeking are engaging in illegal piracy. They're trading music files. There's not a strong argument that any protected speech is involved." Even if they're right about this, it still doesn't extinguish the First Amendment interests of the individuals suspected of piracy. Suppose, for example, a person anonymously posted a comment about another person that looked clearly defamatory. The fact that it might look like a slam-dunk case still doesn't obviate the need to establish the heightened First Amendment standards for subpoenas. Copyright should be no different.

Courts are still working on shaping the heightened standard for revealing the identity of an anonymous speaker, but several courts have recently been requiring that the person or entity seeking the information satisfy the summary judgment standard. See Doe v. Cahill, 884 A.2d 451 (Del.2005) (see here for my post about Cahill) and In re Does 1-10, -- S.W.3d --, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007) (see here for my post about In re Does).

So the RIAA shouldn't be given an easy time when seeking people's identities via subpoenas. It should be forced to make its case and meet the summary judgment standard. Maybe it will succeed in doing this in most cases, but it should at least be challenged to demonstrate its case.

Posted by Daniel J. Solove at 12:45 AM | Comments (15) | TrackBack

Who Is Frank Pasquale?

You know him as Frank Pasquale, as he blogs here occasionally regularly frequently like a madman on steroids, but who is he really?

You might not know that Frank Pasquale recently won a victory in a court case in Texas, In re Does 1-10, -- S.W.3d --, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007):

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributer John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog as fac-p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital.

As Frank mentioned earlier, this other Frank Pasquale is his "purloined persona." Several others commented on the fake Frank and the lawsuit in question. For example, Professor Bill McGeveran wrote:

A Blogger page called “The Paris Site” (cute pun) is a detailed gripe site about the local hospital in Paris, Texas and its parent company, Essent Healthcare. According to this news story in the local Paris paper, Essent has sued the anonymous bloggers behind the site for defamation, alleging that the site suggests the hospital is culpable for Medicare fraud and other wrongdoing. The blogger(s) use various pseudonyms, including, at one point, “Frank Pasquale.” The state court judge in the case has ordered a local ISP to provide the real name and address of the site’s proprietor.

This sort of thing occurs fairly frequently online. On political blogs you often see commenters signing the name of elected officials, usually to parody them by making sarcastic or ridiculous remarks in their name. You also see it all the time on sites like AutoAdmit/XOXOHTH, where part of the style of so-called joke is to use other people’s names (or screen names) and turn them into sock puppets. If obvious enough as humor, those may or may not be misleading, but I have little doubt that this sort of impersonation also happens in many contexts that are outright deceptive.

See also this post by Ruchira Paul.

In the lawsuit, John Doe aka "Frank Pasquale" prevailed, with the court declaring the importance of protecting the First Amendment rights of anonymous speakers. The court adopted the approach in Doe v. Cahill,, 884 A.2d 451 (Del.2005), an approach that I believe is the best. I blogged about Cahill here. According to the court:

The cases that have decided this issue range from placing an extremely light burden (indeed, virtually no burden at all) on the plaintiff, to requiring the plaintiff to tender proof of its allegations that would survive a summary judgment, or even more stringent requirements. At least one case has essentially concluded that the mere allegation of libel is sufficient. Other cases have articulated requirements that are so weak as to essentially require no more than allegations made in good faith (or not in bad faith), with some evidence to support the allegations.

We cannot agree that either of these formulations is sufficient to survive any form of constitutional balancing. Thus, the question becomes the degree of actual proof that must be provided before the balance tips in favor of piercing the constitutional shield and disclosing the identity of the anonymous blogger.

We find ourselves more in alignment with the formulations set out in Cahill, 884 A.2d at 458-61. . . . The court in Cahill described the test as: “[B]efore a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process he must support his defamation claim with facts sufficient to defeat a summary judgment motion.” Cahill, 884 A.2d at 460. This standard does not require a plaintiff to prove its case as a matter of undisputed fact, but instead to produce evidence sufficient to create issues that would preclude summary judgment.

The court remanded the case to the trial court to determine if the hospital could meet this standard. I am pleased that the court followed Cahill, and I'm doubly pleased because the court cited me in its opinion -- my article A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere, 84 Wash. U. L. Rev. 1195 (2006).

The only downside in all this is that the mystery remains: Who is Frank Pasquale? For now, we'll have to continue to wait and wonder.

Posted by Daniel J. Solove at 12:05 AM | Comments (2) | TrackBack

Why the FEC Deadlock?

The WaPo warns that the FEC is about to "shut down." Though "375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely" because of gridlock over President Bush's effort to appoint Hans Von Spakofsky to a six year term on the commission. Here's Dahlia Lithwick on Von Spakofsky:

Von Spakovsky's Senate confirmation hearing last June was noteworthy for many oddities, not the least of which was a letter sent to the rules committee by six former career professionals in the voting rights section of the Justice Department; folks who had worked under both Republican and Democratic administrations for a period that spanned 36 years. The letter urged the committee to reject von Spakovsky on the grounds that while at DoJ, he was one of the architects of a transformation in the voting rights section from its "historic mission to enforce the nation's civil rights laws without regard to politics, to pursuing an agenda which placed the highest priority on the partisan political goals of the political appointees who supervised the Section." The authors named him as the "point person for undermining the Civil Rights Division's mandate to protect voting rights."

The Lithwick article is worth reading in full, as is the context provided by election law scholar Richard Hasen in Slate stories here and here.

My question is: isn't there some less controversial nominee than Von Spakofsky? Washington must have a good number of Republican election lawyers who share the president's priorities and would prove excellent leaders of the Commission.

Meanwhile, the gridlock could imperil the bid of at least one presidential candidate:

When it comes to federal matching funds, Democrat John Edwards has the most to lose. The FEC certified the payment of the first installment of funds this week, including $8.8 million for Edwards. But matching payments for money he has raised this month, or will receive in subsequent months, may have to wait until the FEC has four members.

There is debate among campaign finance lawyers about whether matching funds could be released without a formal commission vote, one Edwards campaign official said. Because the next installment of funds would not arrive until after the early primaries, strategists inside the Edwards campaign said they are not worried.

Another unworried person is a former FEC head, Bradley Smith, interviewed here.

Posted by Frank Pasquale at 09:27 AM | Comments (0) | TrackBack

Kosher Food, Social Justice, and Shaming (Blumenthal Guest)

The last year or so has seen a fascinating movement in the kosher food world-the development of the "hekhsher tzedek" -variously translated as a "righteous seal" or "Justice certification." Initiated largely by the Conservative Jewish movement, the certification is seen as a complement to the traditional kosher certification, which attests that the food in question has been prepared according to Jewish ritual law. According to the United Synagogue of Conservative Judaism, the seal would certify that "food and meat processors have met a set of standards that determine the social responsibility of kosher food producers, particularly in the area of workers' rights." Thus, kosher food could receive two certifications-one showing that it is ritually kosher, one showing that the workers in a particular plant were treated ethically, fairly, and legally. The USCJ was to consider a resolution establishing the certification at its December conference last week. It was expected to pass easily, though I have not seen follow-up reports.

The idea is controversial, for a number of reasons legal and otherwise. One is motive-some see the move as motivated by antipathy toward one of the larger kosher facilities, AgriProcessors, in Iowa, where worker mistreatment and unsafe conditions were alleged in the spring of 2006.

Another set of issues concerns the proper purviews of government, religious, and lay groups: objections have been raised that responding to such worker treatment is the role of government agencies and the justice system. There are interesting echoes here of the kosher fraud statute cases of the last several years, in which constitutional challenges to state definitions of "kosher" were upheld. These cases essentially led to more informal, social regulation of kosher food sellers, reflecting the sort of "shaming" and social norms issued often discussed here at CO. See Shayna M. Sigman, Kosher Without Law: The Role of Nonlegal Sanctions in Overcoming Fraud Within the Kosher Food Industry, 31 FLA. ST. U. L. REV. 509 (2004). (My own opinion is that those cases may be wrong, and the statutes not unconstitutional, but that's another discussion.)

But other questions have been raised, too-for instance, what effect, if any, would such certification have on the value of the ritual certification (i.e., would the religious aspect of it be devalued)? Is there potential liability for a certifying group if there is an accident or mistreatment at a plant that has been certified? What standards would the certifying group use?

All of these notions, I think, raise good issues for legal scholars (and students looking for note topics!).

Posted by Jeremy Blumenthal at 10:49 PM | Comments (2) | TrackBack

Food Fraud & the First Amendment

The Pennsylvania Dep't of Agriculture has decided to keep consumers from knowing whether the milk they buy is free of certain hormones:

Dennis Wolff, Pennsylvania’s agriculture secretary [has] announced a crackdown on “absence labeling” on milk, meaning labels that tell consumers what isn’t in a product rather than what is. He argues that “hormone free” labels are misleading because cows produce hormones naturally. Even labels that are more carefully worded, such as “contains no artificial hormones” will soon be verboten in Pennsylvania because Mr. Wolff said that there were no scientific tests to prove the truth of such a claim.

On first glance, this might seem like a classic case for First Amendment intervention. A reporter asks " as long as the claim is accurate, isn’t the point of labels to differentiate one product from another?" He warns that "using Mr. Wolff’s reasoning, you could argue that organic labels on milk are unfair because they suggest that non-organic food is inferior. The same goes for labels for “natural,” “from grass-fed cows” and “locally produced.”"

However, Rebecca Tushnet counsels caution, especially given consumers' limited opportunities to process information. Commenting on controversy over "genetically modified organism" labeling, she writes:

Establishing that some consumers wish to avoid GMO foods on non-safety grounds does nothing to refute either of the FDA’s major premises: GMO foods are safe, and labeling will mislead some significant number of consumers about safety.

Tushnet's position makes sense to me, but I am afraid that captured regulators may provoke courts to impose sweeping First Amendment limits on advertising regulation. Instead of picking on consumers with preferences for less chemical cow enhancement, why aren't they taking on real "food frauds?" For example, here's the CSPI on Smucker's:

All varieties of Smucker’s Simply Fruit contain more fruit syrup than actual fruit. And the syrup doesn’t even come from the fruit in the products’ names, but from (cheaper) apple, pineapple, or pear juice concentrate.

This strikes me as much worse for consumers than the "absence labeling" in the milk context. But perhaps we should be willing to accept some questionable priorities now in exchange for First Amendment flexibility that permits future action on real food fraud.

Posted by Frank Pasquale at 02:14 PM | Comments (1) | TrackBack

Public vs. Private: Funerals, Free Speech, and Privacy

Timothy Zick recently blogged about a lawsuit by a parent of a deceased soldier against a fundamentalist religious group that protested near the funeral. The religious group has been protesting near several funerals for soldiers, and their message is particularly offensive: The group claims that the soldiers died as punishment for a society that permits homosexuality. Read Timothy's post for more background about the case.

The verdict is now in. From the AP:

A grieving father won a nearly $11 million verdict Wednesday against a fundamentalist Kansas church that pickets military funerals out of a belief that the war in Iraq is a punishment for the nation's tolerance of homosexuality.

Albert Snyder of York, Pa., sued the Westboro Baptist Church for unspecified damages after members demonstrated at the March 2006 funeral of his son, Lance Cpl. Matthew Snyder, who was killed in Iraq.

The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress. . . .

Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as "Thank God for dead soldiers" and "God hates fags."

Snyder claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.

While the amount of the verdict strikes me as far too excessive, I am pleased that the plaintiffs won (from what limited information I've read about the case). I would like to respond to Timothy Zick's very thoughtful and compelling argument for why the speech of the protesters should win out over the interests of the family holding the funeral. Timothy argues:

These are all well-worn justifications and responses. But they are also, as I say, somewhat unsatisfying. Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented. One of the central arguments in my book is that our public expressive topography has suffered a slow but steady erosion. The spaces we have left -- including all of the sidewalks and public thoroughfares -- are critical to the survival of any tangible public expressive culture. This is not an abstract concern. In this light, small contests like the ones concerning funeral protests attain a significance well beyond the speakers and their hateful message. Restricting or supressing the Westboro protesters will likely mean denying supporters the opportunity to pay last respects as well (even silently and respectfully). Well, one might say, that's no big loss -- sidewalks near cemeteries do not seem appropriate places for public expression. More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting.

Although Timothy makes a good point about the gradual restriction of public space, I am inclined to come out in favor of the plaintiffs in this very difficult case. A funeral, although held outside, is not a purely public event. In my work on privacy, I've frequently argued about how the simplistic binary division of the world into public and private spaces doesn't reflect reality very well. As I wrote in The Future of Reputation:

[M]uch of our daily lives occurs in realms that are neither purely public nor purely private. Instead our activities often take place in the twilight between public and private. We used to speak on the phone at home or in closed phone booths, but with cell phones, we now carry out our conversations in a variety of public places. . . . We frequently have conversations in public that we don't expect to be overheard.

The work of Professors Helen Nissenbaum (NYU Culture & Communication) and Andrew McClurg (Univ. of Memphis Law), among others, also effectively demonstrates how muddy the distinction between public and private is. Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law and Philosophy 559 (1998); Andrew McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C. L. Rev. 989 (1995).

These protests could readily be held elsewhere. They disturbed the tranquility and privacy of a family's deeply personal occasion. It is true that holding these protests away from the funeral will make them less potent -- there is indeed a cost to speech here. But the funeral too is also a form of speech, a quiet and subdued event, which is disrupted by the protesters. The protesters aren't the only ones trying to speak.

I certainly value space for protests. Protesters should be able to voice their messages vociferously, but there is no need for them to invade a quasi-private event in the process. The funeral is not a purely public event, and the space around it is different from a street corner in Times Square. It is different from the National Mall in Washington, DC. That's why Timothy's point about the loss of public space, though well-taken, doesn't quite work in this context.

UPDATE: Ed Still in the comments points to a Baltimore Sun article that contains details about the case that aren't in the other stories I've read. According to that article:

Three adults and four children picketed the March 10, 2006, funeral at St. John Roman Catholic Church in Westminster. Westboro members insisted that their demonstration, about 1,000 feet from the Catholic church, took place legally. . . .

They said they waved placards -- "Thank God for IEDs" and "Fag Troops" among others -- near the funeral motorcade to bring attention to their message.

Snyder testified that he never saw the content of the signs as he entered and left St. John's on the day of his son's funeral. He read the signs for the first time during television news reports later that day.

These facts make me severely question my position that the plaintiffs should have won. If in fact this protest wasn't intrusive into the funeral ceremony, then I don't see the basis for an invasion of privacy or intentional infliction of emotional distress claim.

At this point, given the paucity of reliable and complete facts in media stories, I'm not going to opine anymore until I read a more thorough account of the facts.

Posted by Daniel J. Solove at 12:29 AM | Comments (11) | TrackBack

Funerals and Free Speech

First, thanks to Dan and the other authors for giving me a platform from which to discuss issues relating to public expression as well as other miscellaneous matters. I have greatly enjoyed my guest stint here at CoOp, and am especially grateful to those who have engaged my arguments with thoughtful comments.

In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church's members -- which consist primarily of relatives of a single family -- have drawn public attention and ire for protesting at the funerals of service men and women killed in Iraq and Afghanistan. (Members have also protested near military hospitals.) Their "message" is that God is killing American soldiers to punish the United States for "condoning" homosexuality. The protesters tend to stand -- peacefully for the most part, but quite noticeably -- on sidewalks and other public properties near the entrance to cemeteries. They hold signs conveying messages like "God Hates Fags" and "Thank God for Dead Soldiers." The protesters' presence is obviously deeply upsetting to families and friends who have come to pay their last respects. Three dozen states and Congress have enacted statutes that attempt to limit, in a variety of respects, the time, place, and manner of "funeral protests." The First Amendment Center has a useful summary of the protests and the legal response to them. In a first-of-its-kind lawsuit, the parent of one marine whose funeral was picketed by Westboro members has filed a tort lawsuit against the church, alleging intentional infliction of emotional distress. That trial is currently taking place in Maryland federal court.

One of the things that I find most fascinating about real-space expressive contests is their tendency to challenge our commitment to ideals of "robust and wide open" debate and liberty to offend and provoke others. Of course, content on the Web offends and challenges sensibilities too. But on the sidewalks and streets, as elsewhere on the tangible expressive topography, the offense is felt when and how it hurts most -- in person and in real time and space. Because the message is delivered at or very near the point of contest, the audience has a much more difficult time avoiding it. The speech and speakers involved in funeral protests push hard at the First Amendment envelope. Indeed, many wonder how this sort of expression can possibly be defended. I am not concerned here with setting appropriate spatial boundaries -- i.e., whether a 200- or 500-foot "buffer zone" is constitutionally permissible. Rather, I am interested in what makes this case so difficult at its core. I address that issue after the jump, and also offer a basis for granting this kind of expression some public space that differs from many of the abstract principles usually cited.

Defending the funeral protester necessitates resort to abstract justifications for expressive rights -- ones that apply regardless of the reprehensibility of the message or messenger. Protection for such speech rests upon fundamental commitments to principles like neutrality, autonomy, and self-government. This is, of course, nothing new insofar as First Amendment precedent and tradition are concerned; Nazis, racists, and terrorists have also received some First Amendment protection. For many, however, that doesn't really make abstract support for this new group of hate-mongers any more acceptable. Further, the vulnerability of the targeted audience (although Westboro obviously seeks publicity on a much broader scale as well) makes the case especially difficult. Isn't there something that can be done to shield mourners from this sort of public display? In this respect, the funeral protest resembles contests involving abortion clinic "sidewalk counselors," who seek access to the more intimate space of a vulnerable audience. Restricting speech based on audience vulnerability or sensibility seems a slippery path. Even asking, as the jury was recently instructed to do in the Maryland tort suit, whether the speaker's actions "would be highly offensive to a reasonable person," may invite dilution of public expression based on listeners' reactions. The First Amendment generally precludes this, even if the expression is, as here, particularly despicable. Finally, there is the difficulty in identifying any coherent message in these "protests." Divine retribution for the nation's sins is not a novel (or even crazy) idea; but the suggested means of retribution strikes one as only faintly related to some divinely inspired plan. (If God wanted us to see our errors, why not speak to us more directly?) In any event, incoherence of a speaker's message is no more grounds for denying First Amendment protection than is offensiveness.

These are all well-worn justifications and responses. But they are also, as I say, somewhat unsatisfying. Because the speaker and message are so problematic and these justifications wanting, it may be helpful to focus instead on the critical public space issue presented. One of the central arguments in my book is that our public expressive topography has suffered a slow but steady erosion. The spaces we have left -- including all of the sidewalks and public thoroughfares -- are critical to the survival of any tangible public expressive culture. This is not an abstract concern. In this light, small contests like the ones concerning funeral protests attain a significance well beyond the speakers and their hateful message. Restricting or supressing the Westboro protesters will likely mean denying supporters the opportunity to pay last respects as well (even silently and respectfully). Well, one might say, that's no big loss -- sidewalks near cemeteries do not seem appropriate places for public expression. More generally and seriously, restricting this expression on grounds of audience offense or sensibility will set a negative precedent for future public contests, at many other places on the expressive topography. It will provide yet one more justification for denying speakers an effective opportunity to engage others in a physical setting. The abortion clinic precedents, which are now being cited in the funeral protest cases, tend to bear out that concern. No one likely would mourn the absence of the Westboro protesters. But we ought to be mindful of the loss of public space that may result from defeating (or seriously restricting) them. That, at least for me, is a more comfortable basis for granting even despicable speech like this some public breathing space.

Posted by Timothy Zick at 03:50 PM | Comments (9) | TrackBack

Privacy's Other Path: Recovering the Law of Confidentiality

Dan and I have just uploaded the final published version of our article, Privacy's Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we're both very excited it's out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here's the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual's inviolate personality. English law, however, rejected Warren and Brandeis's conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law's divergent paths reveals that each body of law's conception of privacy has much to teach the other.

Posted by Neil Richards at 03:56 PM | Comments (0) | TrackBack

Can Antitrust Accommodate Privacy Concerns?

The proposed Google/DoubleClick merger has provoked a complaint from EPIC and concern from many privacy advocates. EPIC claims that Google's standard M.O. amounts to a "deceptive trade practice:"

Upon arriving at the Google homepage, a Google user is not informed of Google’s data collection practices until he or she clicks through four links. Most users will not reach this page. . . . Google collects user search terms in connection with his or her IP address without adequate notice to the user. Therefore, Google’s representations concerning its data retention practices were, and are, deceptive practices.

One key question raised by the proposed merger is whether privacy concerns like these can be folded into traditional antitrust analysis. Peter Swire argues that they can; he believes that "privacy harms reduce consumer welfare [and] lead to a reduction in the quality of a good or service." I am broadly sympathetic with Swire's aims, but I worry that contemporary antitrust doctrine is too etiolated to encompass his concerns.

First, here is Swire's perspective on how things may change for the worse for consumers after the merger:

Google often has "deep" information about an individual's actions, such as detailed information about search terms. Currently, DoubleClick sets one or more cookies on an individual's computers, and receives detailed information about which sites the person visits while surfing. DoubleClick has "broad" information about an individual's actions, with its leading ability to pinpoint where a person surfs.

If the merger is approved, then individuals using the market leader in search may face a search product that has both "deep" and "broad" collection of information. For the many millions of individuals with high privacy preferences, this may be a significant reduction in the quality of the search product—search previously was conducted without the combined deep and broad tracking, and now the combination will exist.

Initial points of contention here include a) the definition of the products at issue and b) how to weigh the costs and benefits of a merger. The combined company would have different segments of "customers" in a multi-sided market:

1) searchers trying to find sites
2) ad-buyers trying to reach searchers

Swire argues that many people care about privacy, and "[i]t would be illogical to count the harms to consumers from higher prices while excluding the harms from privacy invasions—both sorts of harms reduce consumer surplus and consumer welfare in the relevant market." But the web searcher category not only includes people who care about privacy, but also includes many people who don't care. According to Eric Goldman's work on personalized search, some may even consider the gathering of data about them to be a service. The more information is gathered about them, the more targeted ads to them may become. If you're going to "pay" for a service by viewing ads, you may well be paying less if the ads bear some relation to things you might buy.

So while Swire models advertising and data collection as a cost to be endured, Google/Click is likely to say that "deep and broad tracking" (and the resulting ads) are a service to customers. Swire might respond that individuals hyperbolically discount future privacy protection for small monetary gains in the present, and that public policy should prevent that.

But in my view, privacy might better be considered an "irreducibly social good" than some quantum of enjoyment individuals trade off for money. As Sunstein and Frank suggested in their work on CBA and relative position, given the importance of positional goods in today's society, people who trade off safety/privacy/etc. will likely "outcompete" peers who won't do so. Though their work was inspired by health and safety regulations, its upshot applies equally well to privacy:

When a regulation requires all [individuals to purchase] additional [privacy], each . . . gives up the same amount of other goods, so no [one] experiences a decline in relative living standards. The upshot is that an individual will value an across-the-board increase in [privacy] much more highly than an increase in safety that he alone purchases.

A collective commitment to privacy may be far more valuable than a private, transactional approach that all but guarantees a "race to the bottom."

Can contemporary antitrust accommodate such concerns? Many now believe that consumer welfare only takes into account allocative efficiency. For example, the DOJ was hard-pressed to adequately factor in a basic democratic commitment to diverse communicative channels during many media mergers. The FTC might find it equally difficult to address the political and cultural implications of search engines now.

But what if we shift from thinking of loss of privacy as a "cost" of web searching, to considering it as a reduction in the quality of the product of web searching? Swire quotes National Society of Professional Engineers v. U.S., to validate this consideration:

"The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain: quality, service, safety, and durability - and not just the immediate cost, are favorably affected by the free opportunity to select among alternative offers" (435 U.S. 679, 695 (1978)). The Merger Guidelines, § 4, specifically mention "improved quality" among the possible effects of efficient market behavior, along with lower prices and new products

Here I think Douglas Kysar's work on the product/process distinction may help Swire's case. Kysar has claimed that consumers should have a right to make choices of products based on how the products are made, not just how well they work. Kysar argues "in favor of acknowledging and accommodating consumer process preferences within theoretical frameworks for policy analysis, given the potential significance that such preferences may serve in the future as outlets for public-regarding behavior."

Admittedly, the valuation problems here might be difficult; how exactly are we to determine how much consumers are willing to pay to avoid privacy-eroding companies? But on the other hand, consider the array of incommensurables already entering into the decisionmaking process: the different markets for "Google/Click"'s products, the weighing of the value of potential new services against the potential diminution in quality of old ones, etc. Perhaps, as Heinzerling and Ackerman suggest in their book Priceless, we should stop even trying to pretend that these decisions can be made on anything approaching a quantitative basis. Or at least acknowledge that the numbers can be cooked in many different ways to produce a desired end result.

Perhaps consumer concerns like the ones Kysar raises can't fit easily into contemporary antitrust analysis. But that might be one reason to establish a regulatory body that could take a more holistic view of the role of search in the contemporary economy--and to suspect any proposals to move from ordinary regulation to antitrust as the sole constraint on business conduct in certain fields.

One final point on the merger's non-privacy implications: In our piece Federal Search Commission?, Oren Bracha and I briefly mention some complexities caused by Google's purchase of YouTube. For example, does Google weight its merger with a company in its ranking algorithm? How well are YouTube's rivals doing in searches on Google for videos? And how will DoubleClick's current rivals do in search results for ad-serving companies after the merger? Just as Google wants the carriers to be open about how they manage traffic, it might be proper for Google to be transparent about exactly how its acquisition of a company affects that company's position in its search results. As Google becomes the centralized clearinghouse of information about us, someone needs to be in a position to watch this watcher.

Posted by Frank Pasquale at 11:00 AM | Comments (0) | TrackBack

The Boy Who Cried "National Security": The Need for Greater Skepticism About Government Secrecy

I just blogged about an incident where the 2nd Circuit sought to have Howard Bashman remove an unredacted judicial decision from his site and replace it with a redacted version. Apparently, the redacted version attempted to remove information about a rather dicey interrogation technique the FBI used. According to Tony Mauro of the Legal Times:

Based on a comparison of Bashman's original posting of the opinion and the redacted version that the 2nd Circuit posted today, the Court acted to keep from view details of the FBI interrogation, in which agents allegedly threatened to turn Higazy's family in Egypt over to Egypt's security service, which could use torture and "give his family hell."

Is such a redaction appropriate? What is the national security benefit of keeping this information secret?

Claims of secrecy in the name of national security must really be put under rigorous scrutiny. Far too often, courts and others defer to the government's contention that certain information must be kept secret or else a security nightmare will ensue. In many cases, however, claims of secrecy are really attempts by government officials to cover their asses or conceal their misdoings. Recall the Pentagon Papers? The government made lavish claims that national security would be imperiled. Attorney General John Mitchell declared that disclosing the papers would "cause irreparable injury to the defense interests of the United States." And what did the papers turn out to be? Evidence that the government misled the public about how the US became involved in Vietnam.

Given the current state of the law, there's little incentive for the government not to cry "national security" to conceal ugly information. At worst, the courts or journalists or others just refuse the government's request. But often, they capitulate. They will frequently defer to the government's claims. So why not try? What's there to lose? There needs to be some mechanism to punish unnecessary claims of "national security" to conceal information that shouldn't be concealed. And there should be much more skepticism in evaluating such national security claims. How many times does a boy need to cry wolf before we start at least questioning the veracity of his cries?

Posted by Daniel J. Solove at 11:18 AM | Comments (0) | TrackBack

Who, Exactly, Is a Journalist?

Is Howard Bashman a journalist? Bashman is the author of How Appealing, a very popular legal blog that many readers here read -- and that anybody who wants to keep informed about new cases and legal developments should be reading. Bashman frequently posts or links to court decisions when they are released online, and a recent set of events raised the question of whether he should be considered to be a journalist.

According to the ABA Journal:

federal appeals court quickly withdrew an opinion issued yesterday in a case filed by a Sept. 11 detainee because of concerns it contained information filed under seal.

The opinion by the 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the attacks. Higazy claimed an FBI agent had coerced him to make a false confession.

The court was not quick enough for the blog How Appealing, which posted the opinion after a reader sent it along by e-mail. A clerk later called blog author Howard Bashman to ask him to take it down, but he has not complied.

The court planned to issue a revised opinion this morning, the New York Sun reports.

Bashman told ABAJournal.com that by the time he posted the opinion on his blog, hosted by American Lawyer Media, the ruling had already been viewed by hundreds if not thousands of individuals, and it was widely circulated by e-mail to those who were interested in the case.

"In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the Internet, referred to information contained in an appendix whose contents remained under seal," Bashman wrote in an e-mail.

Bashman's account of the incident is posted on How Appealing.

Matthew Felling, writing at CBS's website, examines Bashman's claim to be a member of the media:

So not only is this a case of transparency, it’s also an anecdote begging the question “What makes someone a journalist?” Bashman called himself a “member of the news media,” yet as far as this writer could tell from a few clicks, he happens to be a Pennsylvania attorney who also operates a blog. . . .

Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does?

As far as this writer is concerned, Bashman fits the bill. But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.

Who is a journalist in an age where anybody can write to a worldwide audience? I believe that anybody can be a journalist -- a journalist is what a journalist does. In other words, being associated with a mainstream media entity doesn't determine who is a journalist and who is not. One doesn't need to be part of any organization to report information to the public.

When asked by Felling what made him a journalist, Bashman responded that he has long been paid by media entities to run his blog. But being paid money shouldn't define whether one is a journalist. Bashman is just as much a journalist even if he doesn't get any money for his efforts -- he's still engaging in the same activity: bringing information to the public.

But are there any lines that can be drawn? Are we at Concurring Opinions journalists? Is the teenager who blogs about her personal feelings and social life a journalist? Is everybody with a MySpace or Facebook page a journalist?

Here are some possible ways to draw the line and some of their pitfalls:

1. Perhaps the line should be drawn based on whether a blogger is engaging in original reporting as opposed to simply commenting on various news stories. This is a distinction that some in the mainstream media make -- "We go to Iraq, we get the news from the place it's happening. Some blogger then just links to our story and adds a few thoughts -- it's not the same." True, it's not the same, but both are still forms of journalism. The mainstream media is often filled with commentary, and opinion and news are often mixed together. The mainstream media loves to discuss other stories in the mainstream media. So if the New York Times or Washington Post or other elite media entity might not want to do original reporting on the salacious gossip about a celebrity, it can write a story: "So-and-so newspaper or blog or whatever says that Celebrity X did Y." The news angle of these stories is that it is newsworthy that others are reporting about the scandal -- even if the scandal itself alone somehow wouldn't qualify. If this works for the MSM, then it should work for bloggers too.

2. Perhaps the line should be drawn based on one's audience. If one has a small audience of just friends, then she's not a journalist. But if one has a broader audience, then she is. But this line is nearly impossible to draw. Does a newspaper need to be read by many to be journalism? Many things are written for a niche audience. But if numbers don't matter, then am I a journalist if I just tell one or two people some information?

3. Perhaps the line should be drawn based on the nature of the information one is spreading. If a person is speaking about personal information, she isn't a journalist. If she is speaking about politics or culture, then she is. But the MSM reports on a litany of topics, often involving personal stories. Some of these stories may not be very newsworthy, but those who write them are still journalists and they are still at least attempting to engage in journalism.

I'm not so sure that the journalist / non-journalist distinction works. Everybody who expresses information to the public should be treated equally -- being labeled a "journalist" shouldn't carry any special privileges, especially since there seems to be no particularly good way to distinguish who is a journalist and who isn't.

Howard Bashman has a constitutional right to post the judicial decision he posted -- the Supreme Court held in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), that "[o]nce true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it." Bashman enjoys this right regardless of whether he is paid by a mainstream media entity or doesn't get a dime for his efforts. He has this right regardless of whether he blogs for 10,000 readers or just 2 people.

Is Howard Bashman a journalist? Should it matter? Perhaps that's not a question we should even be asking.

Posted by Daniel J. Solove at 10:47 AM | Comments (12) | TrackBack

Eighth Circuit Rules Against MLB In Fantasy Baseball Suit

Earlier today, the Eighth Circuit ruled against Major League Baseball in the high-profile fantasy baseball case of CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. The case was brought by CBC, a St. Louis-based fantasy sports company against Major League Baseball seeking a declaratory judgment that CBC's fantasy baseball games did not infringe upon the players' rights of publicity or in the alternative that the First Amendment immunized it from liability. Dan and Kaimi blogged about this case last year here and here. In today's ruling, the Eighth Circuit held that CBC infringed the players' rights of publicity (which they had licensed to MLB) but that any state-law publicity claim was preempted by CBC's First Amendment right to use player names and statistics.

I've got a lot to say about this case (which I think got the First Amendment issues exactly right), but in the interests of full disclosure, I should note that I consulted with lawyers from the St. Louis office of Harness Dickey in structuring the First Amendment and publicity arguments, and that I helped draft some of the briefs. Since this compromises any appearance of objectivity, I'll say only this by way of comment: I think the case was straightforward from a First Amendment point of view, but the really interesting implication of the case is what it will mean for the massive (and profitable) fantasy sports industry. CBC had been a licensee of baseball for the statistics, but baseball terminated the license a few years ago, apparently in an attempt to bring all fantasy baseball (and all of its profits) under its control. Today's holding seems to stand for the proposition that baseball cannot "own" the historical facts of its games (just as famous people can't own the facts of their biographies), and it protects fantasy sports companies to continue to offer games that are not merely "official" licensed products controlled by the major sports leagues. It's also a much-needed strike against the rise of unnecessary intellectual property licensing, which my colleague Jennifer Rothman, as well as Jim Gibson and Elizabeth Winston have written about recently.

Posted by Neil Richards at 04:34 PM | Comments (8) | TrackBack

BBC America and The Virtues of a Free Press

Like most British expats, I subscribe to the digital cable channel BBC America to help keep in touch with culture back home, whether it's Graham Norton, The Office, or the fantastically entertaining car-show-that's-not-really-about-cars Top Gear. BBC America's lineup used to be largely fluff, though hugely entertaining and well-written fluff. As a First Amendment scholar, though, I was quite interested by their recent decision to produce a nightly BBC News telecast for the American market, which they call BBC World News America (it also airs later each evening under a slightly different name).

I've only watched the show a few times, but have been very impressed by it. Two stories in particular struck me for what they say about the potential for television journalism. The first story was an interview with former Pakistan Prime Minister Benazir Bhutto, in which she discussed her intentions to return to Pakistan and run for election as a moderate. Broadly speaking, Bhutto is certainly the kind of candidate that many Westerners would like to see in charge in Pakistan - moderate, Westernized, and a speaker of fluent English. One could thus have forgiven the BBC for giving her an easy time. But they didn't. The interviewer (also the anchor) Matt Frei gave her a torrid time, asking her tough questions about how she could believe that a moderate woman could effectively lead an increasingly radicalized and fundamentalist Islamic state. Bhutto rose to the challenge, but that's not really the point. The point is the willingness of a television news reporter to subject a world figure to sustained questioning, going beyond the offered platitudes of a politician to try to get at the truth. It's something that the major US networks (let's not mention local news) with the possible exception of PBS could learn from.

The second story was earlier this week - a video of life in Burma smuggled out of the country by a brave BBC journalist who could have been imprisoned or worse for merely making the video. The video showed the streets of Myanmar, armed soldiers, and interviews with pro-democracy activists and Buddhist monks in hiding. It showed the value of an independent press, as well as why the media is often the first thing authoritarians (or would be authoritarians) seek to discredit or control.

My point about all this is not to praise BBC America for airing such a serious program (though they deserve praise, even if the commercials they air during it are a bit odd), but rather to make a more general point about First Amendment law and social norms. In the US, First Amendment doctrine guarantees broad protections for the media, freeing them (in practice, if not overtly in theory) from government control, defamation liability, privacy claims, and other sorts of public or private legal controls. But when it comes to a free, independent, and vibrant press (I'm tempted to say uninhibited and robust also, to quote NYT v. Sullivan), law is not enough. Press protections are necessary but not sufficient. We still need journalists who are willing to ask tough questions of important national and international figures, and we still need journalists who are willing to risk imprisonment or even death to report the news. In other words, the social norms of journalists need to be strong, and they need to be oriented to their traditional mission of informing us about what we need to know. We live in a time of infotainment and profit-driven media where we seem to have more reporters covering Brangelina than the War in Iraq. I also think it's true that there is more hard news on Comedy Central than on NBC. These realities can (and should) give us pause. But the BBC World News America blueprint is a courageous one, and as someone that cares about a vibrant and aggressive free press, I hope it not only succeeds but catches on.

Posted by Neil Richards at 12:32 PM | Comments (4) | TrackBack

More on Naming and Orwell (and Pigs)

Tim's interesting recent post on naming made me think about other strange naming laws, and I was reminded more of some of the intricacies of the French system, in which there is an approved government registry of names (no calling your sons Anakin, Monsieur!). In this vein, the Times recently reported on a peculiar extension of this rule to pig-naming: In France, it is apparently illegal to call your pig Napoleon. Such a law would be a very easy case under American free speech jurisprudence, as it is not only a content-based restriction on political speech, but also arguably viewpoint-based. I wonder whether it would also apply to George Orwell's Animal Farm, in which the principal villain is a Berkshire Boar named Napoleon. Curiously, in the French translation of the novel, he is named Cesar instead, which was apparently a concession to the political controversy that calling a pig "Napoleon" in France would have created, even in a novel.

Posted by Neil Richards at 02:59 PM | Comments (0) | TrackBack

A Rush To Condemn

Well, they're at it again. Twenty House Democrats recently introduced a Resolution that "condemns in the strongest possible terms the personal attacks made by the broadcaster Rush Limbaugh impugning the integrity and professionalism of Americans serving in the Armed Forces who have expressed opinions regarding military actions in Iraq." The resolution was prompted by Limbaugh's apparent insinuation that soldiers who oppose the Iraq war are "phony soldiers" (the transcript of Limbaugh's remarks is here). Republicans have prepared their own Resolution "Honoring all Americans serving in the Armed Forces of the United States and commending broadcaster Rush Limbaugh for his relentless efforts to build and maintain troop morale through worldwide radio broadcasts and personal visits to conflict regions." Democrats apparently see this as their "General Betray Us" moment. Republicans now have yet another opportunity to discuss and debate something other than the war policies of the nation. The House is, it seems, happily pre-occupied. It is little wonder that Congress's approval rating hovers below 30%.

As I said in an earlier post concerning the controversy sparked by the "General Betray Us" ad placed in the New York Times by MoveOn.org, official condemnation of political expression conveyed by private citizens and organizations is simply not an appropriate function of the Congress. (For a similar perspective, see Geoff Stone's comments regarding the Senate's condemnation of the MoveOn.org ad). In addition to being a waste of legislative resources, these condemnatory resolutions are an unwarranted interference with what ought to be a "robust" and "wide open" marketplace in political expression. In a new mangling of the First Amendment, the Democrats' resolution purports not only to condemn Limbaugh's expression but also to "defend" the First Amendment rights of soldiers who criticize the Iraq war. When the dust from this latest pseudo-controversy settles, perhaps Congress ought to spend some time reviewing the text of the First Amendment. It expressly condemns governmental laws abridging freedom of expression; and it offers no "protection" whatever to soldiers (or anyone else) against "personal attacks" by private citizens like Mr. Limbaugh or private organizations like MoveOn.org.

The real point of this rather silly exercise is to fire up base constituents and score (very) cheap political points. Sure, Congress is a political body -- and yes, it can and does weigh in on matters of public concern. Still, I hope that a principled member of Congress will propose a "Joint Resolution Condemning All Condemnatory Resolutions of Political Expression."

Posted by Timothy Zick at 01:40 PM | Comments (9) | TrackBack

Roberson for the Social Networking Generation?

The New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of "loser" pen pal that cell phone subscribers could finally "dump." The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I'm most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan "flour of the family." Although the New York Court of Appeals rejected the young woman's claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article "The Right to Privacy" was adopted in a variety of related contexts, but this dimension of privacy -- the appropriation of likeness for commercial purposes -- has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that's a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one - the hurt feelings stemming from the unwanted exposure of one's likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it's no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce - we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.

Posted by Neil Richards at 12:39 PM | Comments (1) | TrackBack

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

I'm very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on Amazon.com and Barnes & Noble's website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establi